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Thursday, 18 March 2010

SMEs and patent litigation: are we asking the right questions?

The April 2010 issue of Sweet & Maxwell's monthly European Intellectual Property Review(EIPR) leads with an Opinion by Dr Sivaramjani Thambisetty (right), who lectures in IP law at the London School of Economics. Entitled "SMEs and Patent Litigation: Policy-Based Evidence Making?", this piece suggests that, in a number of recent policy documents, there is little evidence for the claims made that access to justice is denied. Dr Thambisetty identifies five assumptions concerning patent litigation and (Small and Medium-Sized Enterprises) SMEs that permeate the current policy debate in England and Wales:

1. More litigation would mean better enforcement and therefore better use of the patent system;

2. SMEs would patent more only if there was better enforcement;

3. SME access to cheaper patent litigation is in the public interest;

4. We can and must emulate the German example;

5. A streamlined procedure would attract a greater number of cases from within and from outside the United Kingdom.

The questions must be asked: are these the right assumptions upon which we should be proceeding, and what evidence can we attach to them?

Some of the answers, and indeed a good number of further questions, can be expected following the anticipated publication of the Study into current social, economic & business issues for small & medium-sized firms in the enforcement of Intellectual Property Rights in the UK. This study, commissioned by the Strategic Advisory Board for Intellectual Property Policy (SABIP)from the Intellectual Property Institute, in partnership with Oxford University and expert practitioners, has sought to explore current social, economic and business issues for small- and medium-sized firms in the enforcement of intellectual property rights in the UK. The project involved surveying SMEs and legal professionals. If nothing else, it should give the most current and accurate account of what SMEs and micro-businesses think, how they make their IP litigation decisions and what they think of the results.